Citation Nr: 1028205
Decision Date: 07/28/10 Archive Date: 08/10/10
DOCKET NO. 06-12 476 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Washington, DC
THE ISSUE
Whether new and material evidence has been received to reopen the
claim of entitlement to service connection for residuals of a
head injury.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the
United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Jennifer R. White, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1969 to April 1971.
This case comes before the Board of Veterans' Appeals (Board) on
appeal from a July 2004 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in the District of
Columbia.
The Board notes that in February 2010, the Veteran requested an
additional Board hearing. The Veteran, however, was already
afforded a hearing in March 2008 and the Veteran is not entitled
to a second Board hearing. Under the provisions of 38 C.F.R.
§ 20.700, "a hearing on appeal will be granted if an appellant,
or an appellant's representative acting on his or her behalf,
expresses a desire to appear in person." The regulation plainly
implements the provisions of 38 U.S.C.A. § 7107(b), which
provides that the Board "shall decide any appeal only after
affording the appellant an opportunity for a hearing."
38 U.S.C.A. § 7107(b) (2009) (Italics added). The Board notes
that the cited statute also refers in other contexts as ensuring
that the Board afford the Veteran a single hearing. 38 U.S.C.A.
§§ 7107(d)(1)-(3). Therefore, the Board will deny the Veteran's
request for a second hearing.
The Board remanded the case to the RO, via the Appeals Management
Center (AMC), in May 2008 for further development and
adjudicative action. The case has been returned to the Board for
further appellate review.
The appeal is REMANDED to the agency of original jurisdiction
(AOJ) via the Appeals Management Center (AMC), in Washington, DC.
VA will notify the Veteran if further action is required.
REMAND
The Board finds that there is a further VA duty to assist the
Veteran in developing evidence pertinent to his claim. 38
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).
The Board notes that when the RO adjudicated the Veteran's claim
to reopen in 2004 evidence and adjudicatory documents detailing
the Veteran's previously denied claim from 1983 were missing from
the Veteran's claims file. This evidence was later associated
with the claims file, but not until after recertification to the
Board in February 2010. Thus, the AOJ has not considered this
evidence in adjudication of the Veteran's current claim.
Although the evidence was originally considered by the AOJ in the
1983 rating decision, it has never been considered by the AOJ in
the adjudication of the Veteran's application to reopen his
claim, which was filed in December 2002. As an appellate body,
the Board cannot consider this evidence in the first instance.
See generally Disabled American Veterans v. Secretary of Veterans
Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Thus, the case must be
remanded for AOJ consideration of this evidence.
Additionally, the May 2008 Board remand instructed the AOJ to
request any applicable records from the VAMC (VA Medical Center)
in Washington, DC from 1979 to present, to include records from a
December 9, 2003 tumor board meeting. During June 2008, a
request for such records was sent by the AMC. Subsequently, some
electronic records from the DC VAMC were printed and associated
with the claims file. However, there is no record of an actual
response from the DC VAMC and the specifically mentioned December
9, 2003 record of a tumor board meeting was not obtained, nor
were any records from 1979 obtained.
The Board's May 2008 remand conferred on the Veteran the right to
compliance with the remand orders, as a matter of law. See
Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's
remand orders were not fully complied with as there is no record
of a response from the VAMC in Washington, D.C. The Board fully
understands that the requested records may not exist or may no
longer be available; however, if this is the case, there must be
a notation confirming the non-existence or unavailability of such
records from the Washington, D.C. VAMC. 38 C.F.R. § 3.159(c)(2).
This matter must be remanded to the AOJ for compliance with the
Board's May 2008 remand instructions.
Accordingly, the case is REMANDED for the following action:
1. The AOJ is specifically directed to
request any applicable records from the VAMC
in Washington, DC from 1979 to present, to
include records from the December 9, 2003
tumor board meeting. The AOJ must make
repeated requests for these records until it
is reasonably certain that the records do not
exist, or further efforts to obtain them
would be futile. The Veteran and his
representative are to be notified of
unsuccessful efforts in this regard, in order
to allow them the opportunity to obtain and
submit those records for VA review.
All efforts to obtain these records and all
responses received must be clearly documented
in the claims file. 38 C.F.R. § 3.159(c)(2).
2. The AOJ should then review the claims
folder to ensure that all development actions
have been conducted and completed in full.
If any development is incomplete, appropriate
corrective action is to be implemented.
3. When the above development has been
completed, the AOJ should readjudicate the
issue on appeal, taking into consideration
all relevant evidence now associated with the
claims file. If the benefits sought on
appeal are not granted to the Veteran's
satisfaction, the AOJ should issue a
Supplemental Statement of the Case and afford
the Veteran and his representative the
requisite opportunity to respond.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
M.N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).